C.A. Upholds Order to Man Not to Disclose Materials He Siphoned
From Wife’s Two Cell Phones

By a MetNews
Staff Writer

A trial court
was justified in ordering a man not to disclose to third parties any of the 11
to 12 gigabytes of materials he had downloaded from his estranged wife’s two
cell phones, the Court of Appeal held yesterday.

The
order by a Contra Costa Superior Court judge provides that Joseph Sweeney be
“prohibited from using, copying, printing or disclosing the messages or
content of [his wife’s] text messages or e-mail messages or notes, or anything
else downloaded from her phone or from what has been called the family computer
except as otherwise authorized by the court.”

It
was contested whether the husband had standing permission to access the cell
phones, and the issue was unresolved by the trial court. The messages includes
references to the wife’s visits to a fertility clinic while living with her
husband and reflections on former boyfriends.

Writing
for the First District’s Div. One, Presiding Justice Jim Humes said the order
was properly made under the Domestic Violence Prevention Act (“DVPA “) because the
prospect of disclosure caused mental suffering to the wife, Keri Evilsizor, and
therefore constituted “abuse.”

Evilsizor
is an attorney whose office is in Danville, a town in Contra Costa County. She
specializes in landlord-tenant cases.

Rejecting
Sweeney’s contention that the order intrudes upon his First Amendment
prerogatives, Humes wrote:

“[P]rohibiting
Sweeney from disseminating the contents of Evilsizor’s phones does not amount
to a prohibited restraint of protected speech because Sweeny’s conduct
constituted ‘abuse’ under the DVPA….Sweeney places far too much emphasis on the
fact that the trial court specifically declined to address whether Sweeney illegally
obtained information from Evilsizor’s phones. Regardless whether the data
was acquired legally, the trial court was authorized to conclude that its
dissemination as we have described was abusive under the DVPA and not
the type of speech afforded protection under the First Amendment.”

The
case, which was not certified for publication, is Evilsizor v. Sweeney,
A142396.